CAPÍTULO X DEL UNIFORME
DE LAS VISITAS, EXCURSIONES Y OTROS ACTOS
UNIT 2 OBJECTIVES OF RESEARCHING
3.0 MAIN CONTENT
3.1 Why Research Legislation?
This is not a question that one can easily find an answer to. On the one hand is the belief that law making in itself is a law giving function that produces materials or objects of research. This thinking maskS the fact that law making can also benefit from research. How is this so? The enactment of legislation does not exist in vacuum. Although new laws are made to fill a gap in the law, the new law will always operate in the context of existing laws. Thus, research is required before making this new law in order to:
(a) establish a basis for new legislation; researching the legal system;
efficacy of existing system(empirical study) (b) Look for precedents / comparative models
(c) Establish consistency with other statutes in the legal system e.g the Interpretation Act/ Constitution
These reasons will now be examined in detail.
3.1.1 Researching The Legal System
Whenever proposals for a new law is made, it is necessary to first answer the question whether the existing legal framework can adequately take care of the problem the new law seeks to address. “Is there a law on the subject?” If so, is the law adequate? In what ways can the law be strengthened? These are typical questions that should be posed in research of this nature. Very often there is a law i.e. legislation on a subject, but which needs to be strengthened by amendments usually in the area of enforcement powers and sanctions.
It must not be presumed, however, that the mere fact that there is an existing law on a subject contemplated by a legislative proposal necessarily puts paid to the proposal. The Nigerian Criminal Code for example contains many offences but the modern dimensions taken by some of these offences such as corruption, fraud, kidnapping e.t.c. may require specialized enforcement powers and penalties in separate legislation.
It must also be noted that sometimes the adequacy or otherwise of an existing law may require more than the doctrinal form of research and the researcher should endeavour to look for an empirical basis for answering such questions. Lawmaking on certain social –economic issues such as poverty, health, social insurance e.t.c. will benefit considerably when preceded by such empirical studies.
3.1.2 Comparative Studies Or Precedents
Where new legislation is contemplated it is often of great assistance to ascertain in countries with comparable legal systems e.g. countries that operate the common law, how similar legislation was drafted and if possible research its efficacy in that country.
Precedents while useful should not be used without regard to the peculiar local circumstances of the proposed legislation. This could be of major importance where for example the legislation could affect custom or traditional beliefs. (e.g. child welfare, marriage or land use and ownership).
However subject to the cautionary note expressed above, precedents are useful devices particularly when one has fully appreciated the scope and underlying principles of the proposed legislation. The precedent thus serves as comparative material in evaluating the adequacy or otherwise of the proposal.
3.1.3 Consistency With Other Enactments Within The Legal Framework
Legislation should not be enacted which conflicts materially with other legislation within the legal framework of a country. Although when this happens the latter legislation is deemed to supercede the earlier in terms of the inconsistency, this may have unintended consequences. More importantly where as in Nigeria a written Constitution exists, legislation must conform to the constitutional provisions lest it is rendered void on account of inconsistency with the Constitution. Section 1 of the 1990 Constitution provides that:
“This Constitution is supreme and shall have binding force…”
Clearly therefore legislation must conform with the Constitution in the following respect:
(a) Legislative authority. Legislation must be made in accordance with powers conferred by the constitution notably under the exclusive or concurrent legislative lists outlined in the schedule to the Constitution.
(b) Legislation must not oust the jurisdiction of the court or interfere directly with the discretion of the court.
(c) Legislation on certain matters e.g. audit of public bodies must comply with constitutional format and procedure (see section 85 of the Constitution)
(d) Legislation must respect rights guaranteed under Chapter IV of the Constitution and also consider the application of the directive principles of State Policy contained in Chapter II.
In all these instances where the legislation fails to conform with the constitution, the legislation will be rendered void and of no effect.
Apart from the Constitution, research to verify legislative consistency should generally extend to the provisions of the:
1. Interpretation Act 2. Acts Authentication Act
3. Any other Act that has some general relevance to the subject matter of the legislative proposal. For example where a legislative proposal relates to the establishment of an Authority to regulate Maritime traffic, all existing laws dealing with Shipping, Ports and Harbours and Admiralty should be researched.
4.0 CONCLUSION
In this unit, we examined the objectives of researching legislation. The main advantage of research in this context is to ensure that legislative proposals are based on a verifiable assessment of need as well as uniformity with the existing framework. Sometimes this uniformity is achieved by judicial reasoning or rationalization i.e. where it is left to a court to pronounce on the validity of two or more conflicting statutes;
however the more exhaustive the research, the less likely the recourse to such judicial rationalizations.
5.0 SUMMARY
In researching proposed legislation, the primary goals are to ensure firstly that there is a necessity for the proposed law and in what form.
Secondly, whether examples or precedents can be found showing how similar legislation was structured or enacted and to what extent such was effective. Lastly, research must ascertain consistency of the proposed law with the Constitution and other laws in the legal framework.
6.0 TUTOR-MARKED ASSIGNMENT
1) Read Section 1 of the 1999 Constitution. Why is the constitution described as the fundamental law of the land?
2) Establish a list of related laws for the legislative proposals on the following:
a. a law to make new provision for social benefits for workers
b. a law to authorize the president to take certain measures where an emergency is declared